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Tuesday, November 3, 2009

Health care, mandates, and the constitutionality of them

The health care debate has heated up to the point where some, like ourselves, are examining whether or not the Congress has the authority to mandate that every citizen has health insurance. Both Patrick Leahy and Nancy Pelosi have displayed near-imperialistic hubris over questions regarding their constitutional authority on this issue. (Leahy basically told a reporter to not question Congress, and Pelosi scoffed at the idea that the constitutionality question was a serious question.)

Democrats have greatly overreached since the new session of Congress was convened back in January, and since Barry was inaugurated. They have behaved like petulant children in serious need of a good spanking. They are making a case for their mandates based on the general welfare clause within the Constitution, and they're poorly misinterpreting it. If the general welfare clause granted the sweeping powers that both Pelosi and Leahy believe exist, then the constitutional safeguards and checks and balances are meaningless. If that's the way the Framers had intended it, then what is the point of a system of checks and balances to avoid a tyrannical government?

The powers that Democrat leaders in Congress believe they have are more broad and sweeping than that of King George III. They're dead wrong on this. They don't have this authority, nor do they have the authority to mandate that every man, woman, and child in the country must have health insurance. States have that power under the Tenth Amendment. They can put together a plan to insure their citizens. Massachusetts did this under then-Governor Mitt Romney (and it's a disaster), and so has Maine (another disaster). Both are very close to the sort of plan wanted by congressional Democrats and Barry. But as is evidenced by the results, both the Massachusetts plan and the Maine plans didn't solve the problem. Both forced citizens to take on additional coverage for things that don't affect them, but yet they're on the dole for it for others. The same will happen with the health insurance "fix" the Democrats in Congress are working on.

Senator Orrin Hatch sat down with CNS News Service to discuss the constitutionality of the mandates Pelosi, Barry, and Company want to enact, and foist on the public. He doesn't see where the Democrats could possibly squeeze that idea out of the Constitution, even if they try to use mental gymnastics, and invoke the commerce clause. Furthermore, two former Justice Department lawyers -- Lee Casey and David Rivkin -- can't seem to find the power the Democrats claim they have:Although the Supreme Court has interpreted Congress’s commerce power expansively, this type of mandate would not pass muster even under the most aggressive commerce clause cases. In Wickard v. Filburn (1942), the court upheld a federal law regulating the national wheat markets. The law was drawn so broadly that wheat grown for consumption on individual farms also was regulated. Even though this rule reached purely local (rather than interstate) activity, the court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce, and so was within Congress’s reach.The court reaffirmed this rationale in 2005 in Gonzales v. Raich, when it validated Congress’s authority to regulate the home cultivation of marijuana for personal use. In doing so, however, the justices emphasized that — as in the wheat case — “the activities regulated by the [Controlled Substances Act] are quintessentially economic.” That simply would not be true with regard to an individual health insurance mandate.

The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the “production, distribution or consumption of commodities,” but for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there. Significantly, in two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact. These decisions reflect judicial recognition that the commerce clause is not infinitely elastic and that, by enumerating its powers, the framers denied Congress the type of general police power that is freely exercised by the states.

The Democrats are more than happy to institute a tax to force people into the government mandate, using the IRS as a bludgeon over the populace to achieve this. Mr. Casey and Mr. Rivkin also see that move as inherently unconstitutional:Like the commerce power, the power to tax gives the federal government vast authority over the public, and it is well settled that Congress can impose a tax for regulatory rather than purely revenue-raising purposes. Yet Congress cannot use its power to tax solely as a means of controlling conduct that it could not otherwise reach through the commerce clause or any other constitutional provision. In the 1922 case Bailey v. Drexel Furniture, the Supreme Court ruled that Congress could not impose a “tax” to penalize conduct (the utilization of child labor) it could not also regulate under the commerce clause. Although the court’s interpretation of the commerce power’s breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.

It's simple, folks. The Democrats, in crafting this legislation, have not only overreached in their power, but they have basically said that the constitutional limits don't exist. They do exist, and they are what keeps this nation from becoming a despotic tyranny, run by a handful of elites with high opinions of themselves.(A HT to Captain Ed for the links that made this post possible, and apologies to readers for the tardiness of this post. The computer and I didn't see eye to eye this morning.)Publius II